Document Fragment View

Matching Fragments

Prayer in this writ petition is for quashing G.O.Ms.No.432 dated 16.9.2003 and directing the respondent Government to appoint a Committee headed by a retired Judge of the High Court and of experts on water management, representatives of the petitioners and representatives of encroachers to suggest permanent solution after local inspection to the water logging and flooding problems faced by the residents of Kathirvedu village.

Kathirvedu village is situated within the limits of Puzhal Panchayat Union. There is a perennial source of water body known as Kathirvedu Thangal, which is rain fed and serves to recharge the ground water in more than 2000 open wells and borewells in the area. Totally 11 CMDA approved residential colonies comprising of 1500 houses are in the vicinity. It is stated in the affidavit that due to encroachments, several water bodies in North Madras area have lost their character and become non-existent. The effect of such illegal encroachments is during rainy season several areas in northern part of Chennai become inundated with floods as the excess water cannot get discharged to the sea. It is further stated that because of industrialization without proper drainage and sewerage planning some water bodies such as Ambattur and Korattur tanks have become contaminated. The report of Directorate of Public Health and Preventive Medicine, Department of Water and Sewage Examination, King Institute Campus, Guindy reveals that water quality of Korattur tank has been lost and has become a sewerage storage tank. It is further stated that originally the natural overflow water of one tank would reach the other tank through naturally formed channels and ultimately reach Bay of Bengal. However, because of industrialization and encroachment this has been affected. The natural over flow from Ambattur tank, Korattur tank and Kolathur tank and excess water from Madhavaram tank used to drain into Captain Cotton Canal through Madhavaram Right Bank Surplus Channel. The width of such channel was originally about 12 metres, but because of illegal encroachments, Madhavaram right Bank Surplus Channel got shrunk from 12 metres to 2 to 6 metres at several places. Because of such encroachments, the entire area in and around Madhavaram tank and Kathirvedu village including Thanikachalam Nagar get submerged in flood water during rainy season. With a view to solve this problem, originally the authorities wanted to restore the natural course of Madhavaram Right Bank Surplus Channel so that it can carry natural surplus water to Captain Cotton Canal and from there to Bay of Bengal. But, subsequently such thinking was changed on the pretext that more areas had been encroached upon. Since Madharavaram Right bank Surplus Channel was completely encroached, the authorities were contemplating to use the other alternative channel that existed linking Korattur tank with Madhavaram tank and administrative sanction was accorded by the Government as per G.O.Ms.No.248 dated 21.4.1999. However, before the project could be implemented, the alternative water channel was also blocked by encroachment. As per G.O.Ms.No.432 dated 16.9.2003, the Government decided to construct an open channel connecting Korattur tank with Madhavaram tank through Kadhirvedu Thangal water body. It is stated that this new proposal of the Government linking Korattur tank, which is now filled with contaminated effluents, with Madhavaram tank, which is one of the water sources for supply of potable water to Chennai city, would constitute a health hazard and will adversely affect the interest of the residents. Apart from the apprehension of water pollution, the petitioner has also pointed out that in view of the level difference between the right and left banks of Madhavaram tank and in view of the natural land gradation which allows water to flow from West to East, any attempt to tinker with the natural flow of water would lead to disastrous consequences. The proposed embankment from Madhavaram tank towards Kathirvedu Thangal will prevent the draining of rain water from both sides of the canal into Madhavaram tank. It is also indicated that the scheme now visualized does not take into account the proposed elevation of National Highways Bye pass road connecting Maduravoil to Madhavaram as such National Highway bye pass road is to cut through the proposed water channel connecting Korattur lake with Madhavaram tank via Kathirvedu Thangal. The criss-crossing of proposed elevated National Highway bye pass road and proposed Korattur Channel course - Madhavaram tank via Kadirvedu Thangal with embankments will lead to submerging of area during rainy season. It is also stated that the existing National Highway, namely, G.N.T. Road linking Chennai and Nellore runs across the Madhavaram tank east to west. The existing arrangement has 6 numbers of vents which cannot take the load of the rain water during rainy season and number of vents in the G.N.T. National Highways road crossing Madhavaram tank has to be increased to accommodate the surplus over flow of 3000 cusecs to Korattur tank. It is also stated that any step by the authorities to increase the Right Flank Weir of the Madhavaram tank without first making provision for connecting the Left Bank of the Madhavaram Tank with the Red Hills Surplus Channel would lead to disastrous consequences as the water would not flow against the natural gradient as the natural gradient is west to east and not from east to west. During rainy season, the adjacent colonies would thus become flooded. Apart from the above apprehensions expressed, the petitioner has highlighted regarding the technical report prepared by the Former Director, Centre for Water Resources, Anna University. Such report has indicated among other things :

The decision of the Supreme Court in AIR 1977 SC 183 (NARAYAN GOVIND GAVATE v. STATE OF MAHARASHTRA) was distinguished. On the other hand, the following observation of Justice Chinnappa Reddy in AIR 1975 Andhra Pradesh 269( Kasireddy Papaiah ( died ) v. Government of A.P.) was cited with approval:

"That the housing conditions of Harijans all over the country continue to be miserable even today is a fact of which courts are bound to take judicial notice. History has made it urgent that, among other problems, the problem of housing Harijans should be solved expeditiously. The greater the delay the more urgent becomes the problem. Therefore, one can never venture to say that the invocation of the emergency provisions of the Land Acquisition Act for providing house sites for Harijans is bad merely because the officials entrusted with the task of taking further action in the matter are negligent or tardy in the discharge of their duties, unless, of course, it can be established that the acquisition itself is made with an oblique motive. The urgent pressures of history are not to be undone by the inaction of the bureaucracy. I am not trying to make any pontific pronouncements. But I am at great pains to point out that provision for house sites for Harijans is an urgent and pressing necessity and that the invocation of the emergency provisions of the Land Acquisition Act cannot be said to be improper, in the absence of mala fides, merely because of the delay on the part of some government officials."

17. It is true that there was pre-

notification and post-notification delay on the part of the officers to finalise and publish the notification. But those facts were present before the Government when it invoked urgency clause and dispensed with inquiry under Section 5-A. As held by this Court, the delay by itself accelerates the urgency: Larger the delay, greater be the urgency. So long as the unhygienic conditions and deplorable housing needs of Dalits, Tribes and the poor are not solved or fulfilled, the urgency continues to subsist. When the Government on the basis of the material, constitutional and international obligation, formed its opinion of urgency, the court, not being an appellate forum, would not disturb the finding unless the court conclusively finds the exercise of the power mala fide. Providing house sites to the Dalits, Tribes and the poor itself is a national problem and a constitutional obligation. So long as the problem is not solved and the need is not fulfilled, the urgency continues to subsist. The State is expending money to relieve the deplorable housing condition in which they live by providing decent housing accommodation with better sanitary conditions. The lethargy on the part of the officers for pre and post-notification delay would not render the exercise of the power to invoke urgency clause invalid on that account."

35. The vague allegation that such alternative scheme is to protect some influential people is difficult to accept. Even though we cannot appreciate the attitude of the Government in not taking effective steps to remove the encroachers, we cannot lose sight of the requirement of completion of the project at an early date. At the same time we cannot lose sight of the fact that possibly the entire Nation and certainly people of Tamil Nadu know about the water shortage problem faced by the people of Tamil Nadu. Similarly the problem relating to drinking water in Chennai is quite well known. Therefore, it is obviously the duty of the Government to protect all sources of potable water so that the inconvenience caused to the inhabitants is minimised. It is therefore necessary that all possible efforts should be made to see that the water of any of the tank to be connected through artificial channel is not contaminated. After having given our anxious thought to the above problem, we fee that adequate steps should be taken by the appropriate authorities to establish water treatment plant at vantage points so that no contaminated water would flow into Korattur tank, Kadirvedu Thangal and ultimately to Madhavaram tank. When the project of such a magnitude has been envisaged and it is claimed by the respondent that major portion has been completed, there is no doubt in our mind that additional resources can be mobilised for establishing atleast three water treatment plants at vantage points to prevent the water of Madhavaram tank, Kadirvedu Thangal and Korattur tank from being polluted in any manner. Such project should be completed as expeditiously as possible, preferably within a period of six months.